Bill S.2863

FILED ON: 7/30/2020

SENATE . . . . . . . . . . . . . . No. 2863

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act relative to out-of-hospital birth access and safety.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 9 of chapter 13 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by inserting after the word “counselors”, in line 7, the following words:- , the board of registration in midwifery .

SECTION 2. Said chapter 13 is hereby further amended by adding the following section:-

Section 110. (a) There shall be within the department of public health a board of registration in midwifery. The board shall consist of 8 members to be appointed by the governor, 5 of whom shall be midwives with not less than 5 years of experience in the practice of midwifery and who shall be licensed under sections 290 to 301, inclusive, of chapter 112, 1 of whom shall be a physician licensed to practice medicine under section 2 of said chapter 112 with experience working with midwives, 1 of whom shall be a certified nurse-midwife licensed to practice midwifery under section 80B of said chapter 112 and 1 of whom shall be a member of the public. Two of the members of the board of registration in midwifery shall have experience working on the issue of racial disparities in maternal health or be a member of a population that is underrepresented in the midwifery profession. When making the appointments, the governor shall consider the recommendations of organizations representing certified professional midwives in the commonwealth. The appointed members shall serve for terms of 3 years. Upon the expiration of a term of office, a member shall continue to serve until a successor has been appointed and qualified. A member shall not serve for more than 2 consecutive terms; provided, however, that a person who is chosen to fill a vacancy in an unexpired term of a prior board member may serve for 2 consecutive terms in addition to the remainder of that unexpired term. A member may be removed by the governor for neglect of duty, misconduct, malfeasance or misfeasance in the office after a written notice of the charges against the member and sufficient opportunity to be heard thereon. Upon the death or removal for cause of a member of the board, the governor shall fill the vacancy for the remainder of that member’s term after considering suggestions from a list of nominees provided by organizations representing certified professional midwives in the commonwealth. Members of the board shall be residents of the commonwealth.

(b) Annually, the board shall elect from its membership a chair and a secretary who shall serve until their successors have been elected and qualified. The board shall meet not less than 4 times annually and may hold additional meetings at the call of the chair or upon the request of not less than 4 members. A quorum for the conduct of official business shall be a majority of those appointed. Board members shall serve without compensation but shall be reimbursed for actual and reasonable expenses incurred in the performance of their duties. The members shall be public employees for the purposes of chapter 258 for all acts or omissions within the scope of their duties as board members.

SECTION 3. Section 3B of Chapter 46 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by inserting after the word “physician”, in line 1, the following words:- or licensed midwife.

SECTION 4. Chapter 112 of the General Laws is hereby amended by adding the following 12 sections:-

Section 290. As used in sections 290 to 301, inclusive, the following words shall, have the following meanings unless the context requires otherwise:

“Board”, the board of registration in midwifery, established under section 110 of chapter 13.

“Certified nurse-midwife”, a nurse with advanced training and who has obtained certification by the American Midwifery Certification Board.

“Client”, a person under the care of a licensed midwife and such person’s fetus or newborn, as codified by a written statement, pursuant to section 299.

“Licensed midwife”, a person registered by the board to practice midwifery in the commonwealth under sections 290 to 301, inclusive.

“MBC”, the Midwifery Bridge Certificate issued by the NARM or its successor credential.

“MEAC”, the Midwifery Education Accreditation Council or its successor organization.

“Midwifery”, the practice of providing primary maternity care to a client and newborn during the preconception, antepartum, intrapartum and postpartum periods.

“NARM”, the North American Registry of Midwives or its successor organization.

Section 291. Nothing in sections 290 to 301 inclusive, shall limit or regulate the practice of a licensed physician, certified nurse-midwife or licensed basic or advanced emergency medical technician. The practice of midwifery shall not constitute the practice of medicine, certified nurse-midwifery or emergency medical care to the extent that a licensed midwife advises, attends or assists a person during pregnancy, labor, natural childbirth or the postpartum period.

Section 292. (a) The board shall:

(i) adopt rules and promulgate regulations governing licensed midwives and the practice of midwifery to promote public health, welfare and safety;

(ii) administer the licensing process, including, but not limited to:

(A) receiving, reviewing, approving, rejecting and issuing applications for licensure;

(B) renewing, suspending, revoking and reinstating licenses;

(D) holding hearings and ordering the disciplinary sanction of a person who violates sections 290 to 301, inclusive, or a regulation of the board;

(iii) establish administrative procedures for processing applications and renewals;

(iv) adopt and provide a uniform, proctored examination for applicants to measure the qualifications necessary for licensure; provided, however, that the board may accept the exam administered by the NARM in connection with granting a certified professional midwife credential in place of and as an equivalent to its own professional examination;

(v) develop practice standards for licensed midwives that shall include, but not be limited to:

(A) adoption of ethical standards for licensed midwives and apprentice midwives;

(B) maintenance of records of care, including client charts;

(D) development of standardized informed consent, reporting and written emergency transport plan forms;

(vi) establish and maintain records of its actions and proceedings in accordance with public records laws;

(vii) require a licensed midwife to report a client’s data to the Midwives Alliance of North America Statistical Registry or a similar registry maintained by a successor organization as approved by the board, provided however, the client shall give consent to the reporting of their data prior to any such data being reported unless the client refuses to consent to the reporting of their data; and

(viii) adopt professional continuing education requirements for licensed midwives seeking renewal consistent with those maintained by the NARM.

(b) Nothing in this section shall limit the board’s authority to impose sanctions that are considered reasonable and appropriate by the board. A person subject to any disciplinary action taken by the board under this section or taken due to a violation of any other law, rule or regulation may file a petition for judicial review pursuant to section 64.

(c) A licensed midwife shall only accept and provide care to clients in accordance with the scope and standards of practice identified in the rules adopted pursuant to this section.

Section 293. A person who desires to be licensed and registered as a licensed midwife shall apply to the board in writing on an application form prescribed and furnished by the board. The applicant shall include in the application statements under oath satisfactory to the board showing that the applicant possesses the qualifications described under section 294 prior to the examination required by section 292 . The secretary of administration and finance, pursuant to section 3B of chapter 7, shall establish a license application fee, a license renewal fee and any other fee applicable under sections 290-301, inclusive. The board, in consultation with the secretary of administration and finance, shall institute a process for applicants to apply for a financial hardship waiver, which may reduce or fully exempt an applicant from paying the fee pursuant to this section. Fees collected by the board shall be deposited into the Quality in Health Professions Trust Fund pursuant to section 35X of chapter 10 to support board operations and administration and to reimburse board members for actual and necessary expenses incurred in the performance of their official duties.

Section 294. (a) To be eligible for registration and licensure by the board as a licensed midwife, an applicant shall: (i) be of good moral character; (ii) be a graduate of a high school or its equivalent; and (iii) possess a valid certified professional midwife credential from the NARM.

(b) Beginning January 1, 2020, an applicant must obtain certification by completing a program or pathway accredited by the MEAC; provided, however, that if certification was obtained prior to January 1, 2020 from an education program or pathway not accredited by the MEAC, an applicant must obtain the MBC; provided further, that if the applicant holds a license in a state that does not require an education or pathway accredited by the MEAC, the applicant must obtain the MBC regardless of the date of certification.

Section 295. Notwithstanding section 172 of chapter 6, the board shall obtain all available criminal offender record information from the criminal history systems board on an applicant by means of fingerprint checks, and from the Federal Bureau of Investigation for a national criminal history records check. The information obtained thereby may be used by the board to determine the applicant's eligibility for licensure under this chapter. If the board determines that such information has a direct bearing on the applicant’s ability to serve as a licensed midwife, such information may serve as a basis for the denial of the application; provided, however, that the board shall not share criminal history records or information with a private entity.

Section 296. The board may license in a like manner, without examination, any certified professional midwife who has been licensed in another state under laws which, in the opinion of the board, require qualifications and maintain standards substantially the same as those of this commonwealth for licensed midwives, provided, however, that such certified professional midwife applies and remits fees as provided for in section 293.

Section 297. (a) The board may, after a hearing pursuant to chapter 30A, revoke, suspend or cancel the license of a licensed midwife, or reprimand or censure a licensed midwife, for any of the reasons set forth in section 61.

(b) No person filing a complaint or reporting information pursuant to this section or assisting the board at its request in any manner in discharging its duties and functions shall be liable in any cause of action arising out of providing such information or assistance, provided, however, that the person making the complaint or reporting or providing such information or assistance does so in good faith and without malice.

Section 298.When accepting a client for care, a licensed midwife shall obtain the client’s informed consent, which shall be evidenced by a written statement in a form prescribed by the board and signed by both the licensed midwife and the client.

The form shall certify that full disclosure has been made and acknowledged by the client as to each of the following items, with the client’s acknowledgement evidenced by a separate signature adjacent to each item in addition to the client’s signature and the date at the end of the form: (i) the name, business address, telephone number and license number of the licensed midwife; (ii) a description of the licensed midwife’s education, training and experience in midwifery; (iii) the nature and scope of the care to be given, including a description of any antepartum, intrapartum or postpartum conditions for which consultation, transfer of care or transport to a hospital is recommended or required; (iv) a copy of the medical emergency or transfer plan particular to each client; (v) the right of the client to file a complaint with the board and instructions on how to file a complaint with the board; (vi) a statement indicating that the client’s records and any transaction with the licensed midwife are confidential; vii) a disclosure of whether the licensed midwife carries malpractice or liability insurance; and (viii) any further information as required by the board.

Section 299. A licensed midwife shall prepare, in a form prescribed by the board, a written plan for the appropriate delivery of emergency care. The plan shall include, but not be limited to: (i) consultation with other health care providers; (ii) emergency transfer; and (iii) access to neonatal intensive care units and obstetrical units or other patient care areas.

Section 300. A health care provider that consults with or accepts a transport, transfer or referral from a licensed midwife, or that provides care to a client of a licensed midwife or such client’s newborn, shall not be liable in a civil action for personal injury or death resulting from an act or omission by the licensed midwife, unless the professional negligence or malpractice of the health care provider was a proximate cause of the injury or death.

Section 301. (a) A person who practices as a licensed midwife in the commonwealth without a license granted pursuant to sections 290 to 301, inclusive, shall be punished by a fine of not less than $100 and not more than $1,000, or by imprisonment for not more than 3 months or both. The board may petition any court of competent jurisdiction for an injunction against any person practicing midwifery or any branch thereof without a license. Such injunction may be issued without proof of damage sustained by any person. Such injunction shall not relieve such person from criminal prosecution for practicing without a license.

(b) Nothing in this section shall prevent or restrict the practice, service or activities of:

(i) a person licensed in the commonwealth from engaging in activities within the scope of practice of the profession or occupation for which such person is licensed; provided, however, that such person does not represent to the public, directly or indirectly, that such person is licensed under sections 290 to 301, inclusive, and that such person does not use any name, title or designation indicating that such person is licensed under said sections 290 to 301, inclusive; or

(ii) a person employed as a midwife by the federal government or an agency thereof if that person provides midwifery services solely under the direction and control of the organization by which such person is employed.

SECTION 5. The board shall adopt rules and promulgate regulations pursuant to this act within 1 year from the effective date of this act.

SECTION 6. Nothing in this act shall preclude a person who was practicing midwifery before the effective date of this act from practicing midwifery in the commonwealth until the board establishes procedures for the licensure of midwives pursuant to this act.

SECTION 7. The board established pursuant to section 110 of chapter 13 of the General Laws shall promulgate regulations for the licensure of individuals practicing midwifery prior to the date on which the board commences issuing licenses, provided, however, that individuals practicing out-of-hospital midwifery in the commonwealth as of the date on which the board commences issuing licenses shall have 2 years from that date to complete the requirements necessary for re-licensure.